Institutional Controls at Contaminated Sites: Best Practices...
Transcript of Institutional Controls at Contaminated Sites: Best Practices...
Institutional Controls at Contaminated Sites:
Best Practices for Counsel in Implementing,
Maintaining and Enforcing ICs
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TUESDAY, JULY 16, 2013
Presenting a live 90-minute webinar with interactive Q&A
Amy L. Edwards, Partner, Holland & Knight, Washington, D.C.
James Miles, EPA, Washington, D.C.
J. Michael Sowinski, Jr., J.D., Vice President, Terradex, Palo Alto, Calif.
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Institutional Controls at
Contaminated Sites
Best Practices for Implementing, Maintaining and Enforcing ICs
July 16, 2013 Strafford Publications
The Presenters
Amy L. Edwards is a partner in Holland & Knight's Public Policy &
Regulation Group, where she serves as co-chair for the firm's
national Environment Team, as well as its Military Installation
Redevelopment Team. Ms. Edwards has been practicing
environmental and energy law for more than 30 years. She routinely
counsels developers, lenders and corporations about effective
strategies for structuring real estate and corporate transactions to
minimize environmental and financial risk. Ms. Edwards represents
local governments, developers, and financial institutions on base
closure and privatization of military housing issues. She has also
represented companies in litigation and enforcement proceedings.
Ms. Edwards was an observer/advisor to the National Conference
of Commissioners on Uniform State Laws while it developed a
model Uniform Environmental Covenants Act. She led the ASTM
Task Group that developed E2091, Standard Guide for Use of
Activity and Use Limitations, Including Institutional and Engineering
Controls, and was the editor/lead author of the ABA’s book,
Implementing Institutional Controls at Brownfields and Other
Contaminated Sites (2nd ed. 2011).
Amy L. Edwards
Partner Holland & Knight
Washington, D.C.
6
The Presenters
James Miles is an attorney in EPA’s Office of Site Remediation
Enforcement. Mr. Miles focuses on policy and guidance
development relating to CERCLA and RCRA corrective action
enforcement. He coordinates the work of a team of attorneys
and oversees Superfund matters associated with enforcement
cases and settlements, rulemakings, and policy guidance
development. He also chairs a national EPA workgroup on
institutional controls and other long-term stewardship practices
employed at contaminated sites. Mr. Miles’ experience also
includes a career in environmental consulting during which he
performed site inspections and investigations pertaining to soil,
air, and water quality and wetlands. He has a Bachelor of Arts
in biology from Cornell University and a Juris Doctorate from
Temple Law School. He is a member of the Pennsylvania bar.
James Miles US EPA
Washington, D.C.
[email protected]. org
7
The Presenters
J. Michael
Sowinski Jr., JD Vice President,
Environmental
Protection Services
Mr. Sowinski brings nearly 20 years of engineering and legal
experience on environmental cleanup, environmental compliance,
property redevelopment, and pollution control (i.e., CWA, RCRA). Mr.
Sowinski is an expert in the niche area of “institutional controls” and
long term stewardship, which is his area of focus as a VP for
Terradex, Inc. Prior to joining Terradex, Mr. Sowinski practiced
environmental law where he advised and litigated on behalf of local
governments and private clients on cleanup, institutional controls,
brownfield, water pollution, land use and other environmental matters.
Mr. Sowinski’s experience also includes a career in environmental
consulting where he consulted to federal and state environmental
agencies, as well as private clients, on environmental cleanup and
compliance matters, ranging from broad-scale program advising on
cleanup program and long term stewardship issues, to site specific
brownfield redevelopment, cleanup, water pollution , and
environmental compliance matters. He received a BS and MS in
Engineering from the University of Maryland, and a Juris Doctorate
from Vermont Law School. Among others, he is a leading member of
ASTM’s “Continuing Obligations” task group.
8
IC Overview and Introduction
EPA Guidance on ICs
Trends in State and Industry Approaches to IC
Management
ICs As A Critical Element of CERCLA LLPs
Emerging IC Issues
Webinar Overview 9
INSTITUTIONAL
CONTROLS OVERVIEW
AND INTRODUCTION
10
Any "administrative
or legal controls that
minimize the potential
for human exposure to
contamination and
protect the integrity of
remedies by limiting
land or resource use,
providing information
to modify behavior, or
both."
IC Overview: Definition of IC
Proprietary Controls
Government Controls
Informational Devices
Enforcement
Documents/Orders
11
IC Overview: IC Terms
ICs ECs (Engineering
Controls)
AULs Environmental Covenants
LUCs LURs
"Deed Notices” Environmental Easements
12
EPA expects to use institutional controls such as water use and
deed restrictions to supplement engineering controls as appropriate
for short- and long-term management to prevent or limit exposure to
hazardous substances, pollutants, or contaminants. Institutional
controls may be used during the conduct of the remedial
investigation/feasibility study (RI/FS) and implementation of the
remedial action and, where necessary, as a component of the
completed remedy. The use of institutional controls shall not
substitute for active response measures (e.g., treatment and/or
containment of source material, restoration of ground waters to their
beneficial uses) as the sole remedy unless such active measures
are determined not to be practicable, based on the balancing of
trade-offs among alternatives that is conducted during the selection
of remedy. 40 CFR 300.430 (a)(iii)(D)
IC Overview: Evolution of ICs (1990 NCP)
13
IC Overview: Evolution of ICs
(2000 ASTM RBCA Guide)
ICs are critical to the success of risk-based corrective action
(“RBCA”)
An understanding of the importance of durable ICs to the success of
risk-based corrective action led to the development of the first ASTM
guide on ICs in 2000 (E 2091-00)
14
IC Overview: Evolution of ICs
ASTM E 2091-11 (Standard Guide for Use of Activity and Use Limitations, Including Institutional and Engineering Controls)
The ASTM IC Guide has been updated twice since its initial issuance over a decade ago
The Guide uses the terminology "Activity and Use Limitations" (to include both institutional and engineering controls)
The Guide discusses the five primary types of AULs:
Proprietary controls
State and local government controls
Enforcement tools
Informational devices
Engineering and access controls
15
IC Overview: ASTM E 2091-11
ASTM E 2091 provides guidance on:
The purpose of AULs (eliminating exposure pathways;
providing notice; identifying exposure assumptions;
identifying permitted and prohibited uses; etc.)
What type of AUL may be most appropriate for each
chemical of concern and each exposure pathway
The relative strengths and weaknesses of the different
types of AULs
The importance of developing long-term monitoring and
stewardship plans
16
IC Overview: Uniform Environmental Covenants Act
17
IC Overview: UECA
What is an Environmental Covenant? The Uniform Environmental Covenants Act defines an
environmental covenant as:
“A servitude under an environmental response project that
imposes activity and use limitations.”
UECA Section 2(4)
Servitude –
“An encumbrance consisting in a right to the limited use of a piece
of land or other immovable property without the possession of it; a
charge or burden on an estate for another’s benefit.”
Black’s Law Dictionary (8th ed. 2004)
18
IC Overview: UECA
What is an Environmental Covenant?
Environmental Response Project - A plan or work performed
for environmental remediation of real property and conducted:
Under a federal or state program governing environmental
remediation of real property…
Incident to closure of a solid or hazardous waste management unit, if
the closure is conducted with approval of an agency, or
Under a state voluntary clean-up program…”
UECA Section 2(5)
Activity and Use Limitations (AULs)
“restrictions or obligations created under this Act with respect to real
property.”
UECA Section 2(1)
19
What UECA Does
Confirms the mechanics of an environmental covenant; creates a
structure for implementing, modifying, enforcing, and terminating
environmental covenants
Provides “real notice” to the world by using the real property
recording system
Broadens the universe of potential “holders” of this limited
property interest
Broadens the universe of enforcers (Sec. 11)
Clarifies the modification and amendment process (Sec. 9(b)
and 10)
20
What UECA Does
Eliminates the common law defenses that might otherwise
invalidate the covenants over time (horizontal and vertical
privity; appurtenant interests; dislike for “spurious” easements;
need to “touch and concern” the land; Marketable Title
Act/Dormant Mineral Interests Act) (Sec. 5(b) and 9(d))
Runs with the land and is perpetual in duration (Sec. 5(a)
and 9(d))
Addresses related legal issues including eminent domain, tax
liens, abandonment, adverse possession, and changed
circumstances (Sec. 9(a) and (c))
21
What UECA Does
Creates a legal infrastructure for creating,
modifying, terminating, and enforcing AULs
Broader universe of “holders”
Broader universe of “enforcers”
Runs with the land
Negates applicability of common law defenses
Can be modified/terminated
22
What UECA Does
Perpetual in duration (unless limited by its terms)
Cannot be extinguished by
Foreclosure of a tax lien
Issuance of tax deed
Adverse possession
Abandonment/waiver/lack of enforcement
Eminent domain, unless agency consents and all
parties are given notice
Marketable Title Act
23
What UECA Does
Agency will always have the right to enforce
Agency may be a holder, i.e., grantee of a limited
property interest, but doesn’t have to be
Notice as required by the agency to:
All who signed
All holding a recorded interest
All in possession
Local government
24
What UECA Does
Environmental Covenant must:
State that it’s an Environmental Covenant created pursuant to
the Act
Contain a legally sufficient description of the real property
Describe the activity and use limitations (AULs)
Identify the holder (i.e., grantee of the Environmental Covenant)
Be signed by
• The agency
• Owner(s)
• Holder
Identify name/location of administrative record
25
What UECA Does NOT Do
Provide this “Super Servitude” tool for purely private
transactions
Bind prior interests in the property unless those
interests are subordinated
Provide standards for remediation or the specific AUL
Provide independent condemnation authority
Address the federal facility/state fight
No citizen suit authority
26
EPA GUIDANCE ON
INSTITUTIONAL
CONTROLS
http://www.epa.gov/superfund/policy/ic/guide/
This presentation is not a product of the United States
Government or the United States Environmental Protection
Agency (the US EPA). The views expressed are those of
the speaker only and do not necessarily represent those of
the United States or the US EPA.
27
EPA’s IC Workload: Tracking System Highlights Progress
EPA Superfund IC Registry (aka IC Tracking System).
Mostly Superfund “construction complete” sites
Tracking System shows IC implementation remains
needed
IC Status designation
Case 1 - No ICs Required
Case 2 - ICs Required
Case 3 - ICs Required and Implemented
Case 4 - No information publicly available
http://www.epa.gov/ictssw07/public/export/regionalReport/ALL_REGIO
NS_IC_REPORTS.HTM
28
EPA’s IC Workload: Five-Year Reviews Highlight IC Issues to Be Addressed
NOTE: Copies of all five-year reviews can be accessed publicly via the national Superfund
webpage available at: http://cfpub.epa.gov/fiveyear/. The issues and recommendations
reflected by the table on the following slide were flagged on an OU basis. The speaker
utilized information publicly available on the EPA website and cannot guarantee the accuracy
of the data.
29
EPA’s IC Workload: Five-Year Reviews Highlight IC Issues to Be Addressed
30
EPA Guidance: IC Supplement to the Five-Year Review Guidance
31
Five-Year Review IC Supplement: Overview
Evaluating protectiveness of remedies with IC
components at Superfund sites
Geared around 3 questions in Five-Year Review
guidance to develop overall protectiveness
statement
Issues, recommendations, and follow-up actions
related to ICs
What IC issues identified during the review currently
prevent the response action from being protective, now
or in the future?
32
Five-Year Review IC Supplement: Key Inquiries
IC instrument review, key concepts:
Implementation status (title work?)
Compliance with IC obligations
Long-term effectiveness and enforceability
Do ICs cover all physical areas that do not support
unlimited use and unrestricted exposure
(“UU/UE”)?
Compliance with use restrictions as determined by
site interviews/inspections?
33
Five-Year Review IC Supplement: Recommended Questions
34
EPA Guidance: Planning, Implementation, Monitoring, Enforcement
(“PIME”) 35
PIME IC Guidance: Overview
Integrates concepts from other disciplines such as real
estate law, land use planning, and community engagement
Cross-program guide discussing roles and responsibilities
for IC life cycle
Particular focus given to the roles of states, tribes,
local governments, and communities in IC selection
and maintenance
Supports EPA’s “enforcement first” policy
Recommends early coordination with stakeholders; IC
compliance planning (see ICIAP slides)
Interim final version signed in November 2010 and
released to FR; final version addressed ~ 350 comments
36
PIME IC Guidance: Significant Policy Statements
IC “trigger”: UU/UE as one factor
Documentation of use restrictions and ICs in decision
documents
Community involvement
Capacity of IC stakeholders, particularly local
governments
State laws as ARARs
Relationship between ICs and post-removal site
controls
Title searches and other real property law
considerations
37
EPA Guidance: IC Implementation and Assurance Plans at Contaminated Sites (“ICIAP”)
38
ICIAP Guidance: Overview
Provides technical framework for creating a plan
that documents activities necessary to implement,
maintain, enforce, and terminate ICs
Single source document of who does what
Companion to the PIME; also written as cross-
program guidance
Key recommendations:
Early development of ICIAP – e.g., RD phase of
Superfund
Periodic review of site ICs, modify ICIAP as appropriate
39
ICIAP Guidance: Recommended ICIAP Contents
40
ICIAP Guidance: Recommended ICIAP Contents (cont.)
41
TRENDS IN STATE AND
INDUSTRY PRACTICE
42
Survey of IC Areas
Tailored Restrictions
Title Search
See, e.g.
NY IC Guidance
Colorado IC Guidance
Florida IC Guidance
State and Industry Approaches: Drafting and Recording ICs
43
State and Industry Approaches IC Compliance Monitoring
44
State and Industry Approaches IC Compliance Monitoring
Periodic
“Snapshot
”
Monitoring
Ongoing
Tailored
Monitoring
Property
Transaction
Land Activity
& Use
LTS IC
IC Monitoring
Approaches
45
Terradex collects and maps multiple
categories of land activity at and around
LandWatch zones.
Land Activity Events are
screened and filtered
against objectives for each
monitoring zone to trigger
alerts.
46
46
Compliance Monitoring
47
See Alert Details
Compliance Monitoring: Land Activity Conflicts
Compliance Monitoring: Water Well Monitoring
48
49
Affected Area
Description
Date & Contact Info
50
Affected Area
Description
Alert Tracking and
Closure
Alert
Protective
Actions
Taken
“Nothing
further needs
to be done.”
Excavator
Excavation
Summary
Environmental
Summary
Path of Excavation
Compared to IC Area
Agency
Get Details
51
52
Ongoing COs for
ICs:
Property AUL
Inspection
Monitor Land
Activity
Reports and
Documentation
53
ASTM E 2790 Guidance on
“Reasonable Steps” – Step 4 Ongoing Steps
Review Docs and
Identify RECs and
ICs
Really Know Your
ICs, ECs and RECs
E2790 Outlines
a Sample
Continuing
Obligations Plan
54
Monitor ICs, ECs,
Appropriate Care
Design and
Implement
Continuing
Obligations
55
Continuing Obligations
Documentation
Continuing Obligations Plan
Existing Conditions
Describe Initial COs
Describe Ongoing COs
Monitoring and Evaluation
Records “This report documents the periodic monitoring and
evaluation efforts that would have been designed
within the continuing obligation plan, and documents
that property conditions are consistent with continuing
obligations at a particular time interval during the
user’s term of property ownership.”
56
IC COMPLIANCE FOR
CERCLA LANDOWNER
LIABILITY
PROTECTIONS
57
Exercise appropriate care by taking reasonable steps to: – (a) stop any continuing release
– (b) prevent any future threatened release; and
– (c) prevent or limit any human, environmental, or natural resource exposure to any previously released hazardous substance.
• Comply with land use restrictions established or relied on in connection with the response action
• Do not impede the effectiveness or integrity of any institutional control
Release
Management
Institutional
Controls
Brownfields Amendments of 2002: “Continuing Obligations” for BFPPs, ILOs, and CPOs
Perform AAI – Land records are the best place to find information about ICs during AAI
– Growing number or registries
58
Continuing Obligations for ICs and LURs: Meaning of ICs vs LURs?
“Comply with land use restrictions”
“Not impede the effectiveness or integrity of any institutional
control”
59
Continuing Obligations for ICs and LURs: Limited case law on scope or meaning
In Ashley II of Charleston, LLC vs. PCS Nitrogen, Inc., 791 F. Supp. 2nd
431, 500-502 (D.S.C. 2011), aff’d on other grounds, PCS Nitrogen, Inc.
V. Ashley II of Charleston, LLC, 714 F.3d 161 (4th Cir. 2013), the court
concluded that the defendant had satisfied the LUR/IC element of the
BFPP defense (even though it had not satisfied other elements of the
defense)
The court did not address what is meant by being "in compliance with
any land use restrictions" or "not impeding the effectiveness or
integrity of any institutional control"
The court did not appear to consider crushed stones, which were
being used as an engineering control, to be a "land use restriction"
60
Continuing Obligations for ICs and LURs: US EPA Common Elements Guidance Discusses IC/LUR Continuing
Obligations 61
Continuing Obligations for ICs and LURs: US EPA Common Elements Guidance Discusses IC/LUR Continuing
Obligations 62
EMERGING ISSUES
63
Emerging Issues: IC Data Exchange
64
Emerging Issues: Land Stewardship Trust
65
Emerging Issues: Estimating IC Costs; IC Fees
66
Emerging Issues: Local Government Coordination
67